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There is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision in Peru–Additional Duty on Imports of Certain Agricultural Products is important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.

To tap the spirit of a new legal realist approach to international law, let us begin with two quotations from two nonlegal sources that capture two defining aspects of a new legal realism. The first is from a letter written by Anton Chekhov (1977, 627) to Alexey Suvorin in 1892: “Let her first say what is, and only then I will listen to what one can and must do.” Those words parallel a famous statement of Karl Llewellyn (1931, 1236), a leader of the original American Legal Realism, who maintained: “The argument is simply that no judgement of what Ought to be done in the future with respect to any part of law can be intelligently made without knowing objectively, as far as possible, what that part of law is now doing.” Llewellyn thus called for “the temporary divorce of Is and Ought for purposes of study.” The statement of Chekhov, a doctor, is particularly to a field – that of law and legal scholarship, and particularly international law and international legal scholarship – which is dedicated to prescriptions, yet spends far too little time on diagnoses. Let us call the Chekhovian approach the empirical strand of new legal realism.

The second complementary slant comes from the writer James Baldwin, who, disillusioned with American racism, left the United States in 1948 for France, where he lived much of his remaining life as a cosmopolitan outsider seeing things anew. Baldwin is quoted as saying: “The purpose of art is to lay bare the questions which have been hidden by the answers.” Let us paraphrase that statement to reflect a central, pragmatist tenet of new legal realism: a purpose of engaging in research in a new legal realist vein is to uncover issues and possibilities to which otherwise we are ignorant, to which otherwise we are blind because we are caught in a single way of viewing a situation. That is the creative aspect of a new legal realism, and it is uncovered through a critical, experimental approach to learning. Let us call the Baldwinian component the Deweyan pragmatist strand of new legal realism.

This rejoinder responds to criticisms by Jan Klabbers and Ino Augsberg of ‘The New Legal Realist Approach to International Law’ (Leiden Journal of International Law, Volume 28:2, 2015). The New Legal Realism brings together empirical and pragmatic perspectives in order to build theory regarding how law obtains meaning, is practised, and changes over time. In contrast with conceptualists, such as Augsberg, legal realists do not accept the priority of concepts over facts, but rather stress the interaction of concepts with experience in shaping law's meaning and practice. Klabbers, as a legal positivist, questions the value of the turn to empirical work and asks whether it is a fad. This rejoinder contends that the New Legal Realism has deep jurisprudential roots in Europe and the United States, constituting a third stream of jurisprudence involving the development of sociolegal theory, in complement with, but not opposed to, analytic and normative theory.

The New Legal Realist approach to international law builds from a jurisprudential tradition that asks how actors use and apply law in order to understand how law obtains meaning, is practised, and changes over time. The article addresses the jurisprudential roots of the New Legal Realism, its core attributes, and six important components in the current transnational context. In the pragmatist tradition, the New Legal Realism is both empirical and problem-centred, attending to both context and legal normativity. What is new is the rise of transnational activity that gives rise to an enlarged scope of transnational problem-solving through international law in radically new ways across areas of law, and the growth of empirical study of these phenomena. The article concludes by addressing the potential risks of the New Legal Realist approach in terms of scientism and relativism, and it responds to them.

This book offers a path-breaking, empirically grounded theory that reframes the study of law and society. It shifts research from a predominantly national context to one that places transnational, national and local lawmaking and practice within a single, coherent, analytic frame. By presenting and elaborating a new concept, transnational legal orders, Halliday and Shaffer present an original approach to legal orders that affect fundamental economic and social behaviors. The contributors generate arrays of hypotheses about how transnational legal orders rise and fall, where they compete and cooperate, and how they settle and unsettle. This original theory is applied and developed by distinguished scholars from North America, Europe and Asia in business law (taxation, corporate bankruptcy, secured transactions, transport of goods by sea), regulatory law (monetary and trade, finance, food safety, climate change), and human rights law (civil and political rights, rule of law, right to health/access to medicines, human trafficking, criminal accountability of political leaders).